Nielsen v. HORNSTEINER

May 8 2012

DA 11-0668

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 102

JENNIFER and ELO NIELSEN,

Plaintiffs and Appellees,

v.

ANDREAS HORNSTEINER,

Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DV-10-303
Honorable James B. Wheelis, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Thomas T. Tornow, Attorney at Law, Whitefish, Montana

For Appellees:

Amy N. Guth, Attorney at Law, Libby, Montana

Submitted on Briefs: April 17, 2012

Decided: May 8, 2012

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Jennifer and Elo Nielsen commenced this action against Andreas Hornsteiner in

the Nineteenth Judicial District Court, Lincoln County. The District Court entered

judgment in favor of the Nielsens, and Hornsteiner now appeals. We affirm.

¶2 Hornsteiner raises two issues on appeal:

1. Whether the District Court abused its discretion in refusing to set aside the
entry of default against Hornsteiner.

2. Whether the District Court erred in awarding attorney’s fees to the Nielsens.

BACKGROUND

¶3 The Nielsens own real property near Trego, Montana. To access their property,

the Nielsens travel approximately two and a half miles over a Forest Service Road, then a

quarter mile along an easement which passes over property owned by Hornsteiner, and

then a short distance across the property of an absentee landowner. Hornsteiner installed

a gate at each end of the Nielsen’s easement where it enters and exits his property. One

of the gates is a cable gate that Hornsteiner insisted be kept latched and locked at all

times. Jennifer Nielsen (who is in her late 60s) and her father (who is in his 90s and

resides with the Nielsens) are unable to open and close this gate. The District Court thus

found that the gate interferes with the Nielsens’ use of their easement.

¶4 In addition to the locked cable gate, Hornsteiner piled debris, stumps, and rocks

along the easement path. These items, the District Court found, “serve no purpose other

than to make it difficult for Nielsens to maintain the easement, particularly in the winter

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months. These obstructions interfere with the Nielsens’ use of the access easement,

especially when the Nielsens attempt to remove snow from their access.”

¶5 The Nielsens filed a complaint on November 19, 2010, and an amended complaint

on December 1, seeking injunctive relief and damages. A summons and the amended

complaint were served on Hornsteiner on March 30, 2011. Hornsteiner failed to file an

answer within 20 days. On April 29, the Clerk of the District Court entered Hornsteiner’s

default.

¶6 On May 16, Hornsteiner filed a motion to set aside the default pursuant to

M. R. Civ. P. 55(c) (2009), which states: “For good cause shown the court may set aside

an entry of default . . . .” Hornsteiner also filed his answer and counterclaims the same

day. The District Court denied Hornsteiner’s motion on June 20. The court concluded

that the default was not willful and that the Nielsens would not be prejudiced if the

default were set aside, but that Hornsteiner had failed to present a meritorious defense in

any event. See Hoyt v. Eklund, 249 Mont. 307, 311-12, 815 P.2d 1140, 1142 (1991) (the

following factors should be considered when determining if the defendant has shown

“good cause” for setting aside an entry of default: (1) whether the default was willful,

(2) whether the plaintiff would be prejudiced if the default should be set aside, and

(3) whether the defendant has presented a meritorious defense to the plaintiff’s claim).

¶7 In this regard, Hornsteiner admitted that the Nielsens have a residential access

easement through his property and that he installed a cable and lock over the easement.

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Yet, Hornsteiner offered no explanation for this obstruction.1 Rather, the District Court

noted, he “audaciously . . . attempts to countersue Plaintiff to extinguish the easement for

their refusal to maintain the obstructions” that Hornsteiner had put in place. The District

Court observed that Hornsteiner was required to provide a reasonable explanation, based

on the surrounding circumstances, for the easement obstructions. See Gabriel v. Wood,

261 Mont. 170, 177, 862 P.2d 42, 46 (1993) (“[W]here the placement of a gate is not

expressly prohibited by the grant of an easement or impliedly prohibited by the

surrounding circumstances, a gate may be constructed across the easement if it is

necessary for the reasonable use of the servient estate and does not interfere with

reasonable use of the right-of-way.”). Hornsteiner failed to do so, and the court stated

that it was “not willing to assume a meritorious defense where one is not offered.” The

District Court scheduled a judgment hearing to address the scope of injunctive relief,

damages, and the Nielsens’ request for attorney’s fees.

¶8 In the interim, the Nielsens applied for a preliminary injunction on July 13. They

explained that Elo Nielsen was undergoing a surgical procedure on July 20; that Jennifer

and her father, therefore, would have to travel the easement without Elo’s assistance; that

the Nielsens had tried to solicit Hornsteiner’s cooperation in leaving the gate open during

the period of Elo’s disability; but that Hornsteiner and his counsel had not communicated

with the Nielsens regarding this issue. The District Court entered a restraining order on

July 14, directing Hornsteiner to leave the gates open and the road free of obstructions

1
According to Elo Nielsen’s affidavit, filed May 27, 2011, Hornsteiner’s property
is not fenced, including in the area near and around the cable gate. Hornsteiner does not
refute this.

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starting on July 19. The court thereafter held a hearing and, on August 4, entered a

preliminary injunction. The court enjoined Hornsteiner from gating the access easement

pending final order of the court following the judgment hearing. The court stated that he

could install a gate manageable to the Nielsens, provided that the Nielsens approved the

gate.

¶9 Following the grant of the preliminary injunction, Hornsteiner did not contact the

Nielsens about an alternative gate. Instead, he placed more rocks alongside the easement.

He also confronted Elo on one occasion when Elo was crossing over the easement.

Hornsteiner yelled and cursed at Elo and threatened to “get out the guns and shoot” Elo.

In later testifying about this incident, Elo described Hornsteiner as “very agitated and all

red in the head. It’s like—his demeanor was like he wanted to kill me or something.”2

The District Court found that Hornsteiner’s conduct was “meant to retaliate against or

intimidate the Nielsens.” The court further found that the Nielsens’ efforts to resolve the

matter with Hornsteiner were “futile” and that his conduct “interferes with the Nielsens’

use and enjoyment of the access easement.”

¶10 The Nielsens, Hornsteiner, and another resident from the Trego area testified at the

judgment hearing, held October 6, 2011. The District Court then entered its findings of

fact, conclusions of law, order, and judgment on October 7. The court specifically found

that the Nielsens are credible and that Hornsteiner is not credible. The court concluded

that Hornsteiner’s placement of the locked cable gate and deposit of stones and rubbish

2
Hornsteiner interjected during Elo’s testimony at the judgment hearing, at which
point the District Court judge ordered Hornsteiner to “restrain” himself and warned him
that “[y]ou can leave if you act up again.”

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along the road “serve only to frustrate Nielsens’ easement rights even if technically

outside the easement’s physical dimensions.” The court found that Hornsteiner had

failed to present a meritorious defense. The court permanently enjoined him and his

successors in interest from gating the access easement. The court stated that Hornsteiner

could install a gate manageable to the Nielsens and their successors in interest, provided

that the Nielsens or their successors approve the gate. The court permanently enjoined

Hornsteiner from placing debris, objects, material, or structures within six feet of either

side of the easement and ordered that any future changes to the easement path must be

made with the express purpose to improve the road, not to harm the road or impede

travel. The court ordered Hornsteiner to remove any gate, impediment, debris, material,

or structure on the road or within six feet of either side of the easement within 20 days.

The court permanently enjoined Hornsteiner from conducting himself in any manner

meant to harass or intimidate the Nielsens, their family members, their guests, or their

successors in interest. Finally, the court awarded the Nielsens their costs and attorney’s

fees.

DISCUSSION

¶11 Issue 1. Whether the District Court abused its discretion in refusing to set aside
the entry of default against Hornsteiner.

¶12 Hornsteiner first contends that the District Court abused its discretion in refusing

to set aside the default. Again, a court may set aside an entry of default for “good cause.”

M. R. Civ. P. 55(c). In Waldher v. FDIC, 282 Mont. 59, 62, 935 P.2d 1101, 1103 (1997),

we explained that the policy of law is to favor a trial on the merits, and thus no great

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abuse of discretion need be shown to warrant a reversal of a district court order denying a

motion to set aside a default. “Our standard of review of a district court’s refusal to set

aside a default is whether there was a slight abuse of discretion by the court.” Waldher,

282 Mont. at 62, 935 P.2d at 1103. Here, Hornsteiner has failed to show even a slight

abuse of discretion.

¶13 Hornsteiner had several opportunities in the District Court—before and after the

entry of default—to allege or identify a meritorious defense to the Nielsens’ claim, Hoyt,

249 Mont. at 311-12, 815 P.2d at 1142, in particular, that a locked cable gate is necessary

for the reasonable use of Hornsteiner’s property and does not interfere with the Nielsen’s

reasonable use of the right-of-way, Gabriel, 261 Mont. at 177, 862 P.2d at 46. He failed

to do so. Again on appeal, Hornsteiner offers nothing more than a conclusory assertion

that “the cable and lock are necessary for the reasonable use of his property and do not

interfere with the Nielsens’ reasonable use of the road.” Hornsteiner does not identify

any factual allegations in his answer and counterclaims supporting this assertion.

Hornsteiner points to no testimony or other evidence presented at any point during the

District Court proceedings supporting this assertion.3 Notably, Hornsteiner does not

contend that the facts adduced during the hearings in the District Court are insufficient to

support the court’s findings of fact and conclusions of law. The District Court heard his

3
Hornsteiner attempts on appeal to offer new evidence, which is included in the
appendices to his appellate briefs. However, this evidence was not presented to the
District Court and, thus, is not part of the record on appeal. See Anderson v. Stokes, 2007
MT 166, ¶ 57, 338 Mont. 118, 163 P.3d 1273 (the parties on appeal are bound by the
record and may not add additional matters in briefs or appendices; this Court will not
consider such matters in determining whether the district court erred in making its
findings).

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testimony but found that he is not credible. This Court “defer[s] to the District Court’s

ability to judge the credibility of witnesses and to resolve any conflicts in the evidence.”

In re Adoption of K.P.M., 2009 MT 31, ¶ 28, 349 Mont. 170, 201 P.3d 833.

¶14 We conclude that the District Court did not abuse its discretion in refusing to set

aside the entry of default against Hornsteiner.

¶15 Issue 2. Whether the District Court erred in awarding attorney’s fees to the
Nielsens.

¶16 Hornsteiner contends that the District Court erred in awarding attorney’s fees to

the Nielsens. Yet, Hornsteiner did not state any objection to an award of attorney’s fees

when it was discussed at the judgment hearing. Nor did he comply with Rule 81 of the

Nineteenth Judicial District Rules of Practice, which required him to file a written

objection within 10 days after service of the Nielsens’ counsel’s affidavit in support of

the requested fees. Noting that Hornsteiner had not filed a timely objection and had not

requested a hearing, the District Court on November 14, 2011, awarded the Nielsens

$3,135.00 in attorney’s fees.

¶17 Hornsteiner advises us in his reply brief on appeal that his counsel sent a letter to

the court on or about November 17, 2011. (The letter is not contained in the District

Court record, but a copy of it is provided with Hornsteiner’s reply brief.) In the letter,

counsel asserts that he did not receive the affidavit of the Nielsens’ counsel in support of

the award of attorney’s fees. Counsel attributes this to “trouble with the postal service.”

He states that he has no objections to the reasonableness of the Nielsens’ counsel’s fees,

but that “[w]e do not waive any objection to whether attorney’s fees can be awarded in

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this case.” As noted, however, Hornsteiner had not yet entered any objections to an

award of attorney’s fees, and he did not thereafter file a motion to alter or amend the

award of attorney’s fees or a motion for relief from the judgment. See M. R. Civ. P. 59,

60. In other words, Hornsteiner never properly presented the District Court with an

objection to the award of attorney’s fees, let alone an argument in support of such an

objection. This Court will not put a district court in error for failing to address an issue or

an argument that was not made before it. Prescott v. Innovative Res. Group, LLC, 2010

MT 35, ¶ 14, 355 Mont. 220, 225 P.3d 1253.

¶18 In sum, Hornsteiner waived his objection to the award of attorney’s fees and has

failed to demonstrate even a slight abuse of discretion in the District Court’s decision to

deny his motion to set aside the default.

¶19 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE

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